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Klausmeyer-Among v. Honolulu City Council

Intermediate Court of Appeals of Hawaii

November 29, 2013

MOANA KEA KLAUSMEYER-AMONG, ROBERT PALMER, and JASON ELLIS, Plaintiffs-Appellants,
v.
HONOLULU CITY COUNCIL, and CITY AND COUNTY OF HONOLULU, DEPARTMENT' OF PLANNING AND PERMITTING, Defendants-Appellees and JOHN DOES 1-5, JANE DOES 1-5, DOE CORPORATIONS 1-5, DOE PARTNERSHIPS 1-5, DOE GOVERNMENT AGENCIES 1-5, and DOE ENTITIES 1-5, Defendants

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 12-1-1480)

Moana Kea Klausmeyer-Among, Robert Palmer Jason Ellis Plaintiffs-Appellants pro se.

Don S. Kitaoka, Brad T. Saito Deputies Corporation Counsel, City and County of Honolulu for Defendants-Appellees.

Nakamura, C.J., Foley and Fujise, JJ.

MEMORANDUM OPINION

Plaintiffs-Appellants Moana Kea Klausmeyer-Among, Robert Palmer, and Jason Ellis (collectively, Plaintiffs), proceeding pro se, appeal from (1) the "Order Granting Defendants Honolulu City Council and City and County of Honolulu Department of Planning and Permitting's Motion for Partial Dismissal of Plaintiffs' Verified Complaint Filed May 24, 2012 and for a More Definite Statement" entered October 31, 2 012 (Dismissal Order 1), and (2) the "Order Granting Defendants Honolulu City Council and City and County of Honolulu Department of Planning and Permitting's Motion for Dismissal of Plaintiffs' More Definite Statement of Counts 4, 5, 12, and 15 of Plaintiff's Verified Complaint Filed May 24, 2012, Filed October 24, 2012" entered February 15, 2013 (Dismissal Order 2). Both orders were entered in the Circuit Court of the First Circuit[1] (circuit court).

On appeal, Plaintiffs contend the circuit court erred, under Hawaii Revised Statutes (HRS) §§ 205A-5 (2011 Repl.) and 205A-6 (2011 Repl.), when it dismissed their complaints for failing to state a claim for which relief can be granted.

I. BACKGROUND

On October 4, 2011, the City and County of Honolulu Department of Planning and Permitting (DPP) recommended that the Honolulu City Council (City Council) approve the State of Hawaii Department of Transportation's (DOT or Applicant[2]) application for Special Management Area Use Permits (SMA Permits) for the Farrington Highway Replacement of Makaha Bridges No. 3 and No. 3a Project (Makaha Bridges Project). On April 3, 2012, the City Council approved the SMA Permits.

On May 24, 2012, Plaintiffs filed a "Verified Complaint for Injunctive, Equitable, and Other Relief" against the City Council and the DPP (collectively, Defendants). Plaintiffs requested injunctive relief under "HRS [§] 205A-6 [p]rovisions, and other applicable rights to relief, " in the form of overturning or otherwise revoking City Council Resolution No. 11-282.[3] Plaintiffs' complaint raised 15 counts. Dismissal Order 1 dismissed, with prejudice, all counts except counts 4, 5, 12, and 15, for failing to state a claim upon which relief could be granted. The circuit court ordered Plaintiffs to provide a more definite statement of the non-dismissed counts.

Plaintiffs' "First Amended Complaint" restated counts 4, 5, 12, and 15 and requested an "immediate INJUNCTION barring applicants from proceeding in any manner to initiate condemnation or bring eminent domain proceedings against Plaintiffs." Plaintiffs also requested an "Order [requiring the] applicants to release ALL data and studies in their entirety, including preliminary, final, changed or initial studies, during the 9 year design process for the Makaha Bridge Project[, ]" and an order to remove Kili Drive from "the current FEMA designated Flood Way, or at minimum the portion of Kili Drive which is not privately owned by HRT Kili Drive LLC and uses an easement over and across the Defendants owned parcel to connect to Farrington Highway . . . ." Dismissal Order 2 dismissed the remaining counts, without prejudice, for failure to state a claim for which relief could be granted.

II. STANDARD OF REVIEW

"A trial court's ruling on a motion to dismiss is reviewed de novo." Kamaka v. Goodsill Anderson Ouinn & Stifel, 117 Hawai'i 92, 104, 176 P.3d 91, 103 (2008).

III. DISCUSSION

A complaint should only be dismissed for failure to state a claim, per Hawai'i Rules of Civil Procedure (HRCP) Rule 12(b)(6), if it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief. See Cnty. of Kaua'i ex rel Nakazawa v. Baptiste, 115 Hawai'i 15, 24, 165 P.3d 916, 925 (2007). Our review is limited to the allegations of the complaint, and we assume the facts of the complaint are true. Pavsek v. Sandvold, 127 Hawai'i 390, 402, 279 P.3d 55, 67 (App. 2012). While a complaint need not provide detailed factual allegations, a plaintiff must provide more than labels and conclusions, or formulaic recitations of the elements of a cause of action, to establish the grounds for entitlement to relief. See id. at 403, 279 P.3d at 68. Plaintiffs' complaint and amended complaint raise several allegations but fail to state a claim upon which relief may be granted.

Count 1: "Plaintiff(s) should not have their properties or any portions thereof subject to eminent domain or condemnation proceedings for a 'bridge replacement' project."

Count 1 of the Complaint alleged that Plaintiffs' properties "are in immediate danger of having forced condemnation or eminent domain actions instituted against them, as threatened by DOT." Plaintiffs fail to provide any legal authority that requires the City Council to refrain from approving a SMA permit for projects that may require state condemnation of land.

Count 2: "An Environmental Impact Statements (EIS) was required by State law, but [Applicant] performed a much less stringent Environmental Assessment (EA)."

The Coastal Zone Management Act, HRS Chapter 205A (Chapter 205A), imposes special controls on the development of real property along shoreline areas "to preserve, protect, and where possible, to restore the natural resources of the coastal zone of Hawaii." HRS § 205A-21 (2011 Repl.). Any development within these special management areas requires a use permit. HRS § 205A-28 (2011 Repl.).

Chapter 205A authorizes counties to administer the permit system and requires the counties to adopt procedures for issuing permits. HRS §§ 205A-23 (2011 Repl.), -26 (2011 Repl.), -29 (2011 Repl.). The Honolulu City Council administers the permit system for the City and County of Honolulu. See Sandy Beach Defense Fund v. City Council of City & Cnty. of Honolulu, 70 Haw. 361, 365, 773 P.2d 250, 254 (1989). Revised Ordinances of Honolulu (ROH) § 25-3.3 (1987), authorized by Chapter 205A, provides: "Any proposed development . . . requiring a [SMA Permit] shall be subject to an assessment by the agency in accordance with the procedural steps set forth in Chapter 343." Count 2 alleged the City Council and DPP failed to comply with HRS Chapter 343, the Hawaii Environmental Protection Act (HEPA), by issuing the SMA permit for the Makaha Bridges Project.

HRS § 343-5(a)(l) (2010 Repl.) requires an EA for actions that propose the "use of state or county lands or the use of state or county funds[.]" HRS § 343-5(a)(3) requires an EA for actions that propose any use within a shoreline area. The Makaha Bridges Project is an action that proposes the use of state funds and is located within a shoreline area.

An EA is an informational document prepared by either the agency proposing an action or a private applicant and is used to evaluate the possible environmental effects of a proposed action. See HRS § 343-2 (2010 Repl.). A "finding of no significant impact" is the "determination based on an [EA] that the subject action will not have a significant effect and, therefore, will not require the preparation of an environmental impact statement." Id.

The "accepting authority" is the "final official or agency that determines the acceptability of the EIS document." Hawaii Administrative Rules (HAR) § 11-200-2, authorized by HRS § 343-6 (2010 Repl.). Whenever an agency proposes an action that uses state lands or funds, the accepting authority is the governor or an authorized representative. HAR § 11-200-04(A)(1), authorized by HRS § 343-6. The DOT, presumably as the governor's authorized representative, is the accepting authority, and as the applicant, the DOT is also the proposing agency.[4]

HAR § 11-200-9 provides in part:

§11-200-9 Assessment of Agency Actions and Applicant Actions
A. For agency actions, except those actions exempt from, the preparation of an environmental assessment pursuant to section 343-5, HRS, or section ...

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